NASF v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1311

FEDERAL COURT OF AUSTRALIA

NASF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1311

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 425, 425A, 441A & 441G

NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699

NASF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N744 of 2003

JACOBSON J
SYDNEY
28 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N744 of 2003

BETWEEN:	NASF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	28 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The Applicant pay the Respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N744 of 2003

BETWEEN:	NASF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	28 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Applicant claims an order under s 39B of the Judiciary Act 1903 (Cth) setting aside a decision of the Refugee Review Tribunal (“RRT”) handed down on 29 May 2003. The RRT affirmed a decision of a delegate of the Minister given on 3 October 2002 refusing to grant the Applicant a protection visa.

2. In her application for a protection visa the Applicant claimed to be a 30 year old Thai female born in Phetchabun.  She produced a copy of her passport with the application.  The passport was issued in May 2002 and showed that the Applicant arrived in Australia on a visitor's visa on 1 August 2002. 

3. The protection visa application was accompanied by a letter from the Applicant's migration agent.  There was an unsigned statement with the letter in which the Applicant claimed to have a different name from that shown on her application.  The statement gave her age as 23.

4. The RRT noted that the details provided in the Applicant's accompanying statement were different from those which appeared in her protection visa application and in her passport.  This was significant because her name and age on the statement bore no resemblance to the details on her protection visa application. 

5. In her statement the Applicant said that she faced persecution in Thailand because she had come to Australia as part of a group of women who had been working in border regions in Thailand and Burma helping Burmese refugees.  She claimed that the women she assisted were to be shipped to Bangkok to work as prostitutes by corrupt officials and border guards.  She also claimed that her network was established to counter the corrupt officials and to help the women escape.

6. The Applicant stated that she feared that if she returned to Thailand the Thai authorities would punish her and put her in gaol for her assistance to the Burmese refugees. 

7. On 2 April 2003 the RRT wrote to the Applicant stating that it had considered the material which she had put before it but it was unable to make a decision in her favour on that material alone.  The letter invited the Applicant to attend a hearing on 8 May 2003. 

8. However, on 7 May 2003 the RRT received a response from the Applicant's migration agent stating that the Applicant did not wish to come to a hearing.  The RRT therefore dealt with the application without holding a hearing. 

9. The addresses to which the letter of 2 April 2003 was sent were those which were stated in the application filed with the RRT for a review of the decision of the delegate.  Ms Christina Zeng was named in the application as the Applicant's migration agent.

10. The Applicant told me that she did not receive the invitation to the hearing and she filed an affidavit in which she swore that she did not receive the letter.  There was evidence before me to indicate that the Applicant's residential address had changed before the invitation to attend the hearing was sent.    The evidence was a change of address form which was lodged with the Department of Immigration and Multicultural Affairs on 23 January 2003. 

11. The change of address form was not sent by the Applicant to the RRT, but it appears that the Department sent a copy of the form to the RRT which received it on or about 23 January 2003.  On the same day the RRT wrote to the Applicant inquiring whether her address had changed and asking if she wished to notify the RRT of a change of address.

12. The letter stated, amongst other things, that the name of the Applicant's authorised representative was Ms Zeng and it inquired of the Applicant whether there was any change to this.  Ms Zeng gave evidence before me that she received the letter of 23 January 2003 but she did not notify any change of address to the RRT because she assumed that she was still instructed as the Applicant's migration agent.  The Applicant herself made no response to the letter.  

13. The Applicant did not suggest to me that Ms Zeng was not her authorised migration agent.  Indeed Ms Zeng gave evidence of her appointment as the Applicant's agent and she told me that she received the invitation to attend the hearing contained in the letter of 2 April 2003. 

14. Ms Zeng's evidence was that the Applicant was unable to speak English and that she was accompanied by a person named “Sam” when Ms Zeng was appointed.  Ms Zeng is unable to speak Thai and all communications between the Applicant and Ms Zeng were conducted in English through Sam.  Ms Zeng was informed through Sam that he was the Applicant's boyfriend.  The Applicant left Ms Zeng with Sam's mobile phone number for the purpose of any communications between her and Ms Zeng. 

15. Ms Zeng gave evidence that when she received the letter from the RRT inviting the Applicant to a hearing she phoned Sam on his mobile phone.  She said that she told Sam that the Applicant must let her know whether she wished to attend the hearing.  There was then a further telephone conversation between Ms Zeng and Sam in which he told her that the Applicant would not attend the hearing.  Ms Zeng then completed the response to hearing invitation form in accordance with those instructions and she sent it to the RRT under her signature. 

16. The RRT was not satisfied on the material which it received from the Applicant that she had a well-founded fear of persecution for a Convention ground.  The RRT’s reasons are stated in paragraphs 22 and 23 of its decision as follows:

    “22. The Tribunal accepts that the applicant is a citizen of Thailand as claimed and as supported by the copy of her Thai passport.  However the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.  This is so because the Tribunal finds the applicant’s claims vague and lacking in useful detail.  The applicant merely made some very general assertions about what she did and what may happen to her.  For example, she does not give any details at all of her activities in the border areas, she does not mention any names at all, including the name of the putative organisation she belonged to, or provide any indication of when, where, what or the how of any of the events she asserted to have happened.  He narrative reads as if she had merely interposed her personal details in a general account to accept that her claims have any credibility or veracity (sic).

    23. The applicant claimed that she ran from the border area and that her network arranged for her to come to Australia.  However, during this time, the applicant was able to obtain a passport in her own name legitimately and without any difficulties in May 2002, and leave Thailand in July 2002 legally to travel to Australia without any problems.  This is not the travel history of a person who has a genuine fear of persecution in her own country or is of adverse attention to that country’s authorities.”

17. The only issue which arises is whether the RRT complied with its obligation under s 425(1) of the Migration Act 1958 (Cth) to invite the Applicant to appear before it to give evidence and present arguments.

18. The RRT is obliged to give notice of the hearing by one of the methods specified in s 441A; see s 425A(2)(a).

19. The methods laid down by s 441A include delivery by pre-paid post to the last address for service provided to the RRT by the recipient or the last residential or business address provided to the RRT by the recipient.

20. Further s 441G(2) provides that if the RRT gives a document to the “authorised recipient”, (i.e. a person authorised by the Applicant to do things on behalf of the Applicant including receiving documents in connection with the review), the RRT is taken to have given the documents to the Applicant. 

21. Here the RRT sent the application to the Applicant by pre-paid post to the addresses stated in the application for review filed with the RRT, namely her residential address, her mailing address and the address of the migration agent. Even though the RRT received a notification of change of residential address the dispatch by the RRT of the invitation to those addresses was sufficient to comply with s 441A(4)(c). This was because the notification to the RRT came from the Department and was not received from the Applicant. Also, she did not reply, as I have said, to the letter of 23 January 2003. In any event it is plain that the invitation was taken to have been received by the Applicant because it was received by her authorised agent as provided in s 441G(2).

22. A similar issue arose in NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184. There the Applicant claimed that the migration agent did not notify him of the hearing that was to take place before the RRT. The Full Court was prepared to assume for the purposes of the application before it that the Applicant's claim that he was not told of the hearing date was correct. The Full Court said at [15] that the RRT’s invitation was served in accordance with the requirements of ss 425A and 441A(4) of the Act.

23. The Full Court then said at [16]:

    “The RRT’s invitation was sent by prepaid post to the applicant at the address for service nominated by him and a copy was sent by the same means to his residential address.  The RRT therefore complied with both s 441A(c)(i) and (ii), notwithstanding (as we are prepared to assumed) the applicant was not himself told of the hearing and did not receive the letter sent to his home address.”

24. It follows, in my opinion, that in this case the RRT must be found to have satisfied the requirements laid down in ss 425A and 441A.

25. Moreover it cannot, in my view, be suggested that the Applicant was denied in any real sense an opportunity to attend the hearing.  I allowed her an adjournment to put on evidence in answer to the evidence of Ms Zeng.  No such evidence was provided.  Accordingly, I am satisfied, on the unchallenged evidence given by Ms Zeng, that the Applicant appointed Sam as her agent and that Ms Zeng acted in accordance with her actual authority in signing the response to the invitation to the hearing. 

26. Furthermore, no evidence has been put before me to indicate that there was an arguable case that the result might have been different in the event that the Applicant had attended the hearing.  The Applicant has, therefore, failed to demonstrate any practical injustice; (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [36] and [37].

27. It follows that the orders I make are that the application is dismissed.  I order the Applicant to pay the Respondent's costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             14 November 2003

The Applicant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 October 2003
Date of Judgment:	28 October 2003